Society of Proprietors of Royal Exchange Buildings, Glasgow, Ltd v. Cotton [1912] ScotLR 945 (09 July 1912)

Society of Proprietors of Royal Exchange Buildings, Glasgow, Ltd v. Cotton [1912] ScotLR 945 (09 July 1912)

Owners of the dominant tenement ex adverso to the servient property have title and sufficient interest to enforce the servitude non altius tollendi; averment of special damage or injury is not required where the servitude is for the mutual benefit of the properties and the dominant tenement is directly opposite the servient tenement.

Citation
[1912] ScotLR 945
Parties
Petitioner: Society of Proprietors of Royal Exchange Buildings, Glasgow, Limited; Objectors/appellants: Miss Mary Smythe Cotton and Miss Eliza Cotton
Jurisdiction
Scotland
Judgment Date
09 July 1912
Procedural Posture
Appeal / Inner House, First Division, Post Dean of Guild Interlocutor
Outcome
Appeal sustained; Dean of Guild's interlocutor recalled.
Legal Topics
Servitude, Real Burden, Non Altius Tollendi, Title to Enforce, Interest to Enforce Servitude
Property Law Servitude Real Burden Non Altius Tollendi Title to Enforce Interest to Enforce Servitude

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Parties

Society of Proprietors of Royal Exchange Buildings, Glasgow, Limited

Petitioner

Miss Mary Smythe Cotton and Miss Eliza Cotton

Objectors/appellants

Procedural Posture

Appeal / Inner House, First Division, Post Dean of Guild Interlocutor

Legal Issues

  1. 1 Whether objectors have title and interest to enforce servitude non altius tollendi against petitioners' proposed building alterations
  2. 2 Whether averment of special damage or injury is necessary to enforce servitude or real burden

Ratio Decidendi

Owners of the dominant tenement ex adverso to the servient property have title and sufficient interest to enforce the servitude non altius tollendi; averment of special damage or injury is not required where the servitude is for the mutual benefit of the properties and the dominant tenement is directly opposite the servient tenement.

Court Disposition

Appeal sustained; Dean of Guild's interlocutor recalled.

Orders

  • Remit to Dean of Guild to sustain appellants' objections and refuse the petition.